[IOT] Draft agreement on Initiation

Wed Mar 1 21:10:50 UTC 2023

Hi Kavouss,

There are many differences between IRP and US court processes.  And many
differences between US court process and other countries' court processes.
But the two major differences between IRP and all court process are
mentioned in my last email:  1) the cost to file an IRP is about ten times
higher than to file a court action; and 2) an IRP panel cannot force ICANN
to pay money or to do anything at all -- but any court with appropriate
jurisdiction over ICANN can make an order requiring ICANN to pay money or
do do anything else the court finds just.

I hope that helps clarify my point here.

Thank you,
Mike

[image: Logo]

Mike Rodenbaugh

address:

548 Market Street, Box 55819

San Francisco, CA 94104

email:

mike at rodenbaugh.com

phone:

+1 (415) 738-8087

On Wed, Mar 1, 2023 at 12:12 PM Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:

> Dear Mike,
> Dear All,
> The warnning of Mike merits to be carefully looked at.
> However, I may ask mike to specify the text to which " *I think we should
> take a stronger position on the filing fee"*
> We need to know the differences between IRP process and Copurt Process
> as he indicated  "i*n particular, new gTLD applicants) into the IRP
> process rather than a court process, by forcing all applicants to promise
> not to sue ICANN."*
> Regards
> Kavouss
>
> On Wed, Mar 1, 2023 at 8:33 PM Mike Rodenbaugh via IOT <iot at icann.org>
> wrote:
>
>> Thanks Susan.  I think we should take a stronger position on the filing
>> fee.  ICANN forces parties (in particular, new gTLD applicants) into the
>> IRP process rather than a court process, by forcing all applicants to
>> promise not to sue ICANN.  The filing fee for this alternative process
>> should not be 10x what it costs to file a court action.
>>
>>
>>
>> The IRP filing fee should be comparable to a court filing fee, not to
>> "comparable processes".  There are no truly comparable processes, where the
>> arbitrators are only allowed to "recommend" ICANN to do something, rather
>> than make any enforceable orders.  Claimants should not have to pay so
>> much, for so little, especially given the cost of the alternative that they
>> are forced to waive.
>>
>>
>>
>> Do we have a face-to-face meeting for this group set in Cancun?
>>
>>
>>
>> Best,
>>
>> Mike
>>
>> [image: Logo]
>>
>> Mike Rodenbaugh
>>
>> address:
>>
>> 548 Market Street, Box 55819
>>
>> San Francisco, CA 94104
>>
>> email:
>>
>> mike at rodenbaugh.com
>>
>> phone:
>>
>> +1 (415) 738-8087
>>
>>
>> On Fri, Feb 24, 2023 at 10:15 AM Susan Payne via IOT <iot at icann.org>
>> wrote:
>>
>>> Hi all
>>>
>>>
>>>
>>> Following our last call, I have cleaned up the language of our draft
>>> agreement on Initiation (formerly our strawperson).  Regarding the amount
>>> of the filing fee and the comparison to other similar proceedings, given
>>> the difficulty we had in how best to express this and what would be
>>> suitable comparators, I have simplified the text a little, removed the
>>> examples of possible other arbitration fora, and instead focussed on the
>>> expectation that ICANN will carry out this exercise and set the fee at a
>>> fair level.
>>>
>>>
>>>
>>> We will, I hope, have our final read through and agree this text on our
>>> next call.  If you are not able to make the call please do raise any
>>> objections over email before then if possible.  If there are any proposals
>>> for substantive changes to the text, please share them over email by close
>>> of business on Tuesday so that we can all consider prior to our Thursday
>>> call.
>>>
>>>
>>>
>>> Speak to you next week.
>>>
>>>
>>>
>>> Susan Payne
>>> Head of Legal Policy
>>>
>>> <https://comlaude.com/>
>>>
>>> 28-30 Little Russell Street,
>>> London WC1A 2HN, UK
>>> *T* +44 (0) 20 7421 8250
>>> *Ext* 255
>>>
>>> *comlaude.com <http://comlaude.com>*
>>>
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>>> <https://www.facebook.com/ComLaude/>
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